(a) Preliminary injunctions.
(a)(1) Notice. No preliminary injunction shall be issued without notice to the adverse party.
(a)(2) Consolidation of hearing. Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received upon an application for a preliminary injunction which would be admissible at the trial on the merits becomes part of the trial record and need not be repeated at the trial. This subdivision (a)(2) shall be so construed and applied as to save to the parties any rights they may have to trial by jury.
(b) Temporary restraining orders.
(b)(1) Notice. No temporary restraining order shall be granted without notice to the adverse party or that party's attorney unless (A) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (B) the applicant or the applicant's attorney certifies to the court in writing as to the efforts, if any, that have been made to give notice and the reasons supporting the claim that notice should not be required.
(b)(2) Form of order. Every temporary restraining order shall be endorsed with the date and hour of issuance and shall be filed forthwith in the clerk's office and entered of record. The order shall define the injury and state why it is irreparable. The order shall expire by its terms within such time after entry, not to exceed 14 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record.
(b)(3) Priority of hearing. If a temporary restraining order is granted, the motion for a preliminary injunction shall be scheduled for hearing at the earliest possible time and takes precedence over all other civil matters except older matters of the same character. When the motion comes on for hearing, the party who obtained the temporary restraining order shall have the burden to show entitlement to a preliminary injunction; if the party does not do so, the court shall dissolve the temporary restraining order.
(b)(4) Dissolution or modification. On 48 hours’ notice to the party who obtained the temporary restraining order without notice, or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification. In that event the court shall proceed to hear and determine the motion as expeditiously as the ends of justice require.
(c)(1) Requirement. The court shall condition issuance of the order or injunction on the giving of security by the applicant, in such sum and form as the court deems proper, unless it appears that none of the parties will incur or suffer costs, attorney fees or damage as the result of any wrongful order or injunction, or unless there exists some other substantial reason for dispensing with the requirement of security. No such security shall be required of the United States, the State of Utah, or of an officer, agency, or subdivision of either; nor shall it be required when it is prohibited by law.
(c)(2) Amount not a limitation. The amount of security shall not establish or limit the amount of costs, including reasonable attorney fees incurred in connection with the restraining order or preliminary injunction, or damages that may be awarded to a party who is found to have been wrongfully restrained or enjoined.
(c)(3) Jurisdiction over surety. A surety upon a bond or undertaking under this rule submits to the jurisdiction of the court and irrevocably appoints the clerk of the court as agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. The surety's liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court who shall forthwith mail copies to the persons giving the security if their addresses are known.
(d) Form and scope. Every restraining order and order granting an injunction shall set forth the reasons for its issuance. It shall be specific in terms and shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained. It shall be binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive notice, in person or through counsel, or otherwise, of the order. If a restraining order is granted without notice to the party restrained, it shall state the reasons justifying the court's decision to proceed without notice.
(e) Grounds. A restraining order or preliminary injunction may issue only upon a showing by the applicant that:
(e)(1) The applicant will suffer irreparable harm unless the order or injunction issues;
(e)(2) The threatened injury to the applicant outweighs whatever damage the proposed order or injunction may cause the party restrained or enjoined;
(e)(3) The order or injunction, if issued, would not be adverse to the public interest; and
(e)(4) There is a substantial likelihood that the applicant will prevail on the merits of the underlying claim, or the case presents serious issues on the merits which should be the subject of further litigation.
(f) Domestic relations cases. Nothing in this rule shall be construed to limit the equitable powers of the courts in domestic relations cases.
Advisory Committee Notes
Rule 65A has been materially revised from the former rule. Some of the changes in the rule are the result of suggestions from Utah's judges, all of whom were asked for their comments on specific ways to improve injunction practice. Although most paragraphs have been changed, there are two major revisions. First, under paragraph (b) of the present rule, the court now has explicit authority to order the consolidation of trial on the merits with the hearing on a preliminary injunction. Second, the grounds for the issuance of temporary restraining orders and preliminary injunctions have been modernized and clarified in paragraph (e). Portions of the rule have been reorganized for purposes of clarity.
Paragraph (a). Subparagraph (a)(1) is identical to paragraph (a) of the former rule. It is also identical to the corresponding subparagraph in Rule 65, Federal Rules of Civil Procedure. Subparagraph (a)(2) is entirely new to the Utah rules. It is borrowed from subparagraph (a)(2) of the federal rule. It allows the court, in its discretion, to adjudicate the entire case at the time of the preliminary injunction hearing. If the court decides not to consolidate the trial on the merits with the preliminary injunction hearing, admissible evidence received at the preliminary injunction hearing nevertheless becomes part of the trial record and need not be introduced again.
Paragraph (b). This paragraph is similar to paragraph (b) of the former rule. It has been reorganized for clarity and has been modernized in other respects. Subparagraph (1) prohibits the issuance of a temporary restraining order unless two conditions are met. First, as in the former rule, the record must disclose that irreparable injury, loss, or damage will result if the court does not intervene. Second, the applicant or the applicant's attorney must provide written certification of any effort to give notice and the reasons for which notice should not be required. The latter requirement is new. The language in subparagraphs (3) and (4) has been modernized and clarified.
Paragraph (c). This paragraph has been revised to reflect developments in the case law and a new rule in this state on damages for wrongfully issued injunctions. Subparagraph (1) makes it clear that the court may decline to require security if it appears that none of the parties will suffer expense or damages from a wrongful temporary restraining order or preliminary injunction, or if, in the particular case, there is some other substantial reason for dispensing with the requirement of security. See Corporation of President of Church of Jesus Christ of Latter-Day Saints v. Wallace, 573 P.2d 1285, 1286-87 (Utah 1978). Otherwise, the court should require security in an appropriate amount. Subparagraph (2), which is new, makes it clear that the amount of the security required by the court does not limit the recovery that may be awarded to a wrongfully restrained party. This provision represents a change in Utah law. Compare with Mountain States Tel. & Tel. Co. v. Atkin, Wright & Mills, 681 P.2d 1258 (Utah 1984). In the committee's view, the prior rule was unfair to the wrongfully enjoined party whose damages from the injunction may far exceed the amount of security estimated at the outset of the case. Subparagraph (2) also explicitly allows a wrongfully enjoined party to recover attorney fees. Subparagraph (3) is closely similar to language in a portion of the former rule's paragraph (c).
Paragraph (d). This paragraph is similar to the corresponding paragraph in the former rule. Borrowing a concept from paragraph (b) of the former rule, it requires the court to state its reasons for granting a temporary restraining order without notice.
Paragraph (e). This paragraph completely revises the corresponding paragraph of the former rule. The committee sought to modernize the grounds for the issuance of injunctive orders by incorporating standards consistent with national trends. There is little case law in Utah interpreting the grounds for injunctive orders, and the committee was divided as to whether the development of grounds should be left entirely to the courts. A majority of the committee believed, however, that courts and litigants would benefit from explicit standards drawn from sound authority. The standards set forth in paragraph (e) are derived from Tri-State Generation & Transmission Ass'n. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir. 1986), and Otero Savings & Loan Ass'n. v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir. 1981). Federal courts require proof of compliance with each of the four standards, but the weight given to each standard may vary. The substantial body of federal case authority in this area should assist the Utah courts in developing the law under paragraph (e).
Paragraph (f). This paragraph is new. It acknowledges that in domestic relations cases courts must occasionally enter prohibitory or mandatory orders under circumstances that do not permit compliance with the procedures in Rule 65A. The committee believed that this rule should not be construed to limit the authority of the court in domestic relations cases.
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